TCPA Litigation: Auto Dialer Debate, Emergency Exemptions, and Other Exceptions


CLE credits earned: 1 GENERAL (or 1 LAW & LEGAL for WA state)

The Telephone Consumer Protection Act (TCPA) has created a firestorm of individual and class action lawsuits looking for quick money from marketing entities, sports agencies, debt collectors, and any other businesses using automatic dialing and/or texting communications with the general public. Even nominal errors or oversights can lead to violations of the TCPA which exposing businesses to extensive liability and damage claims.

This seminar will provide you with the knowledge you need to navigate dangerous waters of automated communications to cellular telephones and the general public. This seminar will explain the requirements and prohibitions of the TCPA, highlight recent developments in the law, regulatory orders and other federal legislation which impact automated communications, and review techniques and strategies to reduce the risk of frivolous or harmful TCPA lawsuits.

This course is co-sponsored with myLawCLE.

Key topics to be discussed:

•   What is an “Automatic Telephone Dialing System”?
•   What is “Prior Express Consent”?
•   Problems and Issues in Ascertaining a TCPA Class under Rule 23.
•   The Viability of the Hobbs Act, Chevron Deference and Constitutionality of the TCPA

Date / Time: May 4, 2020

•   2:00 pm – 3:00 pm Eastern
•   1:00 pm – 2:00 pm Central
•   12:00 pm – 1:00 pm Mountain
•   11:00 am – 12:00 pm Pacific

Choose a format:

•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 24 hours after the original recording date and are view-able for up to one year.

Select your state to see if this class is approved for CLE credit.

Choose the format you want.


Original Broadcast Date: May 4, 2020

Ernest H. “Skip” Kohlmyer, III is a Shareholder with the law firm of Shepard, Smith, Kohlmyer & Hand, P.A. in Orlando, Florida. He has served as corporate counsel for an Atlanta based collection agency. He has been in private practice for 28 years and has been defending various businesses against TCPA Class litigation since 2008. He has represented corporations, collection agencies, debt buyers, and credit reporting agencies in other compliance related matters relating to TCPA issues.

He has had the privilege to serve as either lead counsel or co-counsel in numerous TCPA matters including key Eleventh Circuit decisions in Mais v. Gulf Coast Collection Bureau, Inc. (establishing elements of prior express consent); Glasser v. Hilton Grand Vacation, (successful appellate review of defining an ATDS and “human intervention” technology)

He has been lead counsel in key district court opinions such as Pozo v. Stellar Recovery, Inc. (first opinion to define Live Vox HCI as exempt from TCPA); Reyes v. BCA Financial Services, Inc. (obtained reversal and defeat of class action utilizing Glasser opinion to prevail on ADTS issue); Pollock v. Bay Area Credit (one of the first jury trials to prevail on “prior express consent” and define “willful and knowing” jury instruction.)
Skip also has an LL.M in International Law and Business and is a certified as an arbitrator in international commercial litigation cases, including business litigation, commercial arbitration, and public entity defense litigation.

He has served in various leadership positions with ACA International and is President Elect of the Florida Collectors Association.

Accreditation Policy
myLawCLE seeks accreditation for all programs in all states except, ME, VA, and WV. (Accreditation for paralegals sought thru NALA and NFPA paralegal associations.) Each attending attorney/paralegal will receive a certificate of completion following the close of the CLE program as proof of attendance. In required states, myLawCLE records attorney/paralegals attendance, in all other states attorney/paralegal is provided with the approved CLE certificate to submit to their state bar or governing association.

    Automatic MCLE Approvals

All myLawCLE CLE programs are accredited automatically either directly or via reciprocity in the following states: AK, AR, CA, CT, FL, HI, IL, MO, MT, ND, NH, NM, NJ, NY, and VT. (AZ does not approve CLE programs, but accepts our certificates for CLE credit.)

    Live Video Broadcasts

Live video broadcasts are new live CLE programs being streamed and recorded for the first time. All of these programs qualify for “Live” CLE credit in all states except NV, OH, MS, IN, UT, PA, GA, and LA —these states require in-person attendance to qualify for “Live” CLE credit.

    “Live” Re-Broadcasts

“Live” Re-broadcasts are replays of previous recorded CLE programs, set on a specific date and time and where the original presenting speakers calls in live at the end of the event to answer questions. This “live” element allows for “live” Re-broadcast CLEs to qualify for “Live” CLE credits in most states. [The following states DO NOT allow for “live” CLE credits on re-broadcast CLEs: NV, OH, MS, IN, UT, PA, GA, and LA]

Many states allow for credit to be granted on a 1:1 reciprocal basis for courses approved in another mandatory CLE jurisdiction state. This is known as a reciprocity provision and includes the following states: AK, AR, HI, CT, FL, ME, MO, MT, ND, NH, NM, VT, NJ, and NY. myLawCLE does not seek direct accreditation of live webinars or teleconferences in these states.

Section I. The Nuts and Bolts of the Telephone Consumer Protection Act (“TCPA”)
a) Requirements and Prohibitions of the Act
b) What is an “Automatic Telephone Dialing System”
c) What is sufficient “human intervention” for exemptions from the Telephone Consumer Protection Act (TCPA)

Section II. Emergency Purposes and establishing Prior Express Consent
a) What is “Prior Express Consent”?
b) Demonstrating Proof of the Defense.
c) Handling “Revocations” of Consent (Written and Oral)

Section III. Problems and Issues in Ascertaining a TCPA Class under Rule 23
a) Numerosity
b) Attainability
c) “Administratively Feasible”

Section IV. Recent Legal Issues Involving TCPA lawsuits
a) Hobbs Act and Chevron Deference
b) Constitutionality of the TCPA
c) Reliance upon previous FCC Declaratory Orders regarding TCPA Issues
d) Regulatory and Legislative “Fixes” to the TCPA